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TMI Blog2018 (8) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... ling products and discharged duty under Section 3A of Central Excise Act, 1944 read with Rule 96ZP(3) of erstwhile Central Excise Rules, 1944, on the basis of the Annual Production Capacity fixed by the competent authority. During the said period, the factory remained closed for more than 7 days at different point of time. Accordingly, they claimed abatement of Rs. 14,44,275/- under Rule 96ZP(2). The said production has been rejected on the ground that since the appellant has exercised option to pay lump sum duty under Rule 96ZP(3) of the said Rules, therefore, the abatement for the period of closure under Rule 96ZP(2) is not admissible to them. 4. Learned C.A. for the appellant submits that even though the matter has been decided against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teels and General Mills - 2001 (133) ELT 513 (SC) has been stayed. In absence of any stay, the ratio laid down thereunder be considered as binding precedent interpreted by the Hon'ble Bombay High Court in the case of Rajuri Steels (supra), and the issue is settled in favor of the Revenue. Their Lordships observed as follows: - "5. Coming back to Rule 96ZP(3), terminal clause of the same clearly indicates that those manufacturers, who are enjoying benefit of the scheme of payment of one twelfth of the duty payable on the basis of annual production capacity determined, are required to pay the duty at the rate of Rs. 300/- per tonne, as against Rs. 400/- per tonne in the cases covered by sub-rule (1) of Rule 96. Therefore, if the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to evade the duty, by taking the production of six months to be the annual production capacity, because factory was closed for six months during the year, taken as standard for the purpose of determination of annual production capacity. 7. We are afraid, proviso relied upon by learned Counsel for the appellant does not come to the rescue of the appe1lant-assessee. On the contrary, the same supports the department during the process of determination of annual production capacity. The benefit of proviso to sub section (3) and sub-section (4) of Section 3A of the Act, is not available to the appellant herein, if it has enjoyed benefit of payment of excise duty under procedure prescribed by Rule 96-ZP(3)." Following the aforesaid judgment, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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